According to the group that filed the original complaint, Videotron has failed to do so. And so it has filed another complaint.

Dated Nov. 5 and posted today, the complaint by ICTV (Independent Community Television) alleges that MAtv fails to meet the requirement of 50% community access programming, and not just in Montreal but in eight of nine zones that MAtv operates in. It also notes that Videotron has no programming for an aboriginal audience, which is expected of community services (though there’s no quantitative quota for it).

It also cites the lack of advisory boards outside of Montreal, and the fact that the Montreal advisory board does not include any representatives of ICTV. (“This exclusionary behaviour by Videotron crossed the line when MAtv General Manager we quoted by the press to have implied his station is at war with ICTV, and by extension the communities we represent,” the application states, without giving a source. While it’s true that Videotron has made no effort to approach ICTV, I am unaware of any effort from ICTV to approach MAtv in a constructive way either.)

ICTV comes to its conclusions by studying the program grids posted online over a sample week (Oct. 8-15 for Montreal, Oct. 21-27 for the other eight zones). By looking at where the program was produced, and by whom, it calculates the amount of access programming per region. According to its analysis, these are the levels of access programming for the various regions:

Only Granby meets the 50% minimum, and even then only barely, ICTV says.

The complaint includes a spreadsheet showing the number of hours devoted to each program and how ICTV has categorized it. No doubt Videotron will take issue with some programs being categorized as not being public access.

If the CRTC confirms what ICTV has claimed, it could take serious measures against Videotron, including revoking the licence for MAtv. At that point, an independent community TV service operating in the same region could replace it and get access to its funding. ICTV wants to be that service, though there is also Télévision communautaire Frontenac, which also operates in Montreal and unlike ICTV has a licence.

In a victory for those who feel community TV channels run by cable companies are using loopholes to get around the spirit of the rules, the CRTC has ruled that Videotron’s MAtv community television channel has not complied with its obligations, but will be given a chance to do so.

In short, the CRTC agreed with the complaint by Independent Community TV, an independent group that wants to replace MAtv with its own grass-roots service, that MAtv isn’t providing enough community access programming, and instead counting shows created and hosted by professionals as access programs.

It also found some programs MAtv counted as “local” aren’t specific enough to Montreal.

The regulations require community channels to be 45% access and 60% local, but found MAtv was, during a sample week studied, only 30% access and 39% local.

The CRTC held up an application for an English-language version of MAtv in Montreal as it dealt with this complaint. That decision was also released today, and it allows Videotron to start up the service but denies the additional funding necessary to do so.

Cable companies start community channels because the CRTC allows them to deduct that funding from the 5% of gross revenues that they must spend on Canadian programming (mainly contributions to the Canada Media Fund). The rules allow up to 2% of gross revenues to be used for a community channel. But recently the CRTC has been allowing some companies to deduct a further 2% to create a second channel in another language — Rogers has this in Ottawa, Moncton, Fredericton and Saint John, while Bell has this for its Bell Local service in Montreal.

But because of the non-compliance, and because it felt MAtv already had enough funding, the CRTC says Videotron must start this new service without any additional funding. That severely lessens the chances of it happening.

In addition to a general requirement to come into compliance by the time its licence is up for renewal in August, Videotron must establish a citizen advisory board for MAtv by March 15.

The commission notes that the community TV policy will be reviewed in the coming year, and presumably the discrepancy between Videotron and Bell will be addressed through that.

A complaint by a group of Montreal activists against Videotron is taking on a greater significance as groups are lining up on both sides of a battle for control over Videotron’s community television service.

Last month, I wrote about ICTV, a group headed by people associated with CKUT Radio McGill and others formerly associated with Concordia’s CUTV.

After that article appeared, I was contacted by someone who wanted to set up a meeting with Isabelle Dessureault, the president of MAtv, who wanted to clear up any misconc… let’s just call a spade a spade, wanted to drive the discussion a bit more to Videotron’s favour.

Dessureault confirmed that the CRTC is not moving forward with the Videotron application for an English-language version of the MAtv community television channel, and that this process could delay the launch of that channel by a year or more. MYtv on ice became the basis for another story in The Gazette.

There was also the matter of a lawyer’s letter to ICTV from Videotron ordering it to retract statements about the company that it considered defamatory. (It doesn’t directly threaten legal action, but certainly suggests that would be the next step. Videotron confirmed the letter was sent but said “Quebecor Media is studying its options.”) ICTV refused, saying the CRTC process was the place to settle their differences of opinion.

Since then, two important organizations have backed the two sides of this battle.

ELAN prefers a more professional, high-quality model of community television in which artists are paid for their work instead of volunteers working for free. It believes Videotron’s model is better than ICTV’s in this regard

ELAN believes that ICTV’s proposal for a single multilingual television channel would not be as good as Videotron’s proposal for two channels, one in each language.

ELAN’s opinion makes sense when you consider that it represents artists, such as independent television producers, rather than the community at large. Its view has to be taken in that context. It doesn’t make them evil, and I got no impression whatsoever during their community meetings over this issue that they discouraged other people from expressing their views on the matter, nor do I think they’ve sold out to Videotron.

CACTUS believes in general that community television should be taken out of the hands of cable companies, and that even if there was once a reason for cable to control community television channels, technology has made that reason obsolete.

Edwards argues that community television should be in the hands of the community, not the cable companies.

CACTUS also opposes dividing community channels by language. Among the reasons for being against this are that doing this divides the two communities, leaves no place for third languages, and allows cable companies to double the amount of money they can keep in house rather than give over to Canadian content funds.

The case vs. the policy

One important thing to consider in this whole affair is the difference between whether Videotron is properly following the CRTC’s community television policy and whether that community television policy is properly written to begin with.

The policy has been revised numerous times, the latest in 2010. But there’s a lot of ambiguity there. For example, the key part of community television is community access programming, but the CRTC sets only two criteria for such programming: That the idea come from a member of the community not employed by a cable company, and that this person be involved with the programming in a significant on-camera or off-camera role.

That leaves a lot of loopholes. What if the person is an employee of a company related to a cable company? Can the cable company claim copyright over the programming produced this way?

CACTUS, ICTV and others take exception to the fact that community TV channels run by cable companies are exclusive to customers of those companies. But the CRTC has chosen not to require open distribution of such community channels.

The community television policy could change soon. The CRTC has begun a year-long process of reviewing television policy, and the cable companies and CACTUS will undoubtedly be lending their voices to that process. Until then, though, the ICTV vs. Videotron complaint will be judged on existing policy.

Videotron wants to change … kinda

In my discussions with MAtv president Isabelle Dessureault and general manager Steve Desgagné, they have been trying their best to appear reasonable about this issue. They say Videotron is trying its best to be representative of the community, that it doesn’t reject proposals for community TV programs unless they fail to meet the criteria, and that despite this dispute they are open to proposals from ICTV members. (They note that they have yet to receive any.)

Videotron admits it has gotten some things wrong, most significantly its failure to properly represent the anglophone community in Montreal (an error it is trying to fix with the MYtv application). Dessureault also says MAtv will reform some of the ways it presents information to the public, by changing its end-of-show credits to emphasize the contributions from the community and by volunteers. It also plans to create an annual report for the public that outlines their accomplishments for the year.

And Videotron plans to, by the end of the year, set up an advisory committee for MAtv that would provide feedback on programming. (It had already planned to set up such a committee for MYtv once it was approved.)

Dessureault also said MAtv will be launching a new project in June that will facilitate community contributions to television. The concept is a bit fuzzy to me, but involves a website where people can contribute ideas and content, which will then be given to someone to turn into TV shows or documentaries. The purpose is to allow people to contribute without having to commit to running a weekly show.

But on the fundamentals, there are no changes planned. Most programs are still being produced by Videotron, and Videotron retains control over programming.

Community programming isn’t easy

ICTV, however, argues that it has the resources to make it work. It points to CKUT, a radio station where volunteers fill an entire week’s worth of airtime without the need for repeats. It believes it can do the same on television.

The money issue

The big issue here, of course, isn’t access, it’s money. ICTV could produce hours of video and post it to YouTube. But unless it wins its battle at the CRTC, it won’t get the millions of free cable money needed to pay for it.

Cable companies have community TV channels because they’d have to spend the money anyway, and otherwise it would be outside of their control.

There’s a conspiracy theory floating around (and has been expressed by commenters on this blog) that Videotron and others use community TV for monetary profit, by charging their own community TV channels for technical services.

Dessureault says MAtv’s finances are audited, both internally and by the CRTC, and attempts to cook the books wouldn’t succeed. But she does admit that MAtv does use some of its money to pay for things provided by Quebecor. MAtv shares human resources staff with Videotron, for example, to reduce costs. It also pays rent to TVA for production space (though at “well below market rates,” Dessureault said). Dessureault said these things are a very small portion of MAtv’s budget, which she said goes mainly to programming.

The CRTC has access to MAtv’s finances, and its experts are sticklers for attempts by big companies to take liberties with finances in order to reduce their obligations. So I seriously doubt that Videotron would get away with, say, overcharging MAtv for Internet access or rent in order to suck away some of its budget.

But there’s a legitimate question to be raised over whether such expenses should be paid for by the cable company, separate from the 2% of revenues it can allocate to community programming.

That, too, may be an issue if the CRTC decides to review its community television policy.

Until then, it will be judging Videotron based on its compliance with the current policy, and that policy leaves a lot of room for interpretation.

The CRTC is accepting comments on ICTV’s complaint against Videotron until 8pm ET on April 22. You can file comments using this form. Note that all information submitted, including contact information, becomes part of the public record.

The complaint, filed by a group calling itself Independent Community Television Montreal (ICTV), includes an 86-page document meticulously arguing that the programming that airs on MAtv does not meet CRTC requirements for a community channel. It argues that the CRTC should declare that MAtv is not complying with its licence conditions, and instead grand a licence to ICTV to operate a multilingual community channel that would replace both MAtv and MYtv.